HIV Positive Criminals: Have Sex, Go to Jail

This may be the defining HIV issue of our time, and it is a true test of our compassion and understanding of both HIV stigma and the law. Please read this closely.

Around the country, and without leadership or guidelines from the Federal government, individual states have taken it upon themselves to draft laws that “protect” people from those of us with HIV. Whether using bio-terrorism statutes (!) or simple “assault with a deadly weapon,” people with HIV who do not disclose their status to their sexual partners are risking arrest and prosecution.

You’re already having a visceral response to this scenario, aren’t you? You may have the vague feeling that anyone who doesn’t disclose their HIV+ status to a partner probably deserves to be punished. Don’t worry, you’re not alone. Not only do most people support laws forbidding sex without disclosing an HIV+ status, but even a majority of gay men support such laws, and it is understandable, albeit a misinformed view, as to why.

Many of us know someone who was infected by a partner who didn’t disclose their status, or even lied about it. I have friends who dated someone claiming to be negative, until they found a telltale prescription drug bottle and then discovered they had been infected. Worse yet are the news reports showing some big, scary black man who has been raping white women and infecting them with HIV. How could anyone argue against bringing these liars and malicious infectors to justice?

But the sad fact is, most prosecutions under these laws are not being imposed against those who are deliberately malicious or even criminally negligent. They are being imposed using not science, but the same ignorance, stigma, homophobia and racism that has plagued HIV/AIDS throughout the years. And well intentioned people like you and me are buying into it.

In Texas, a man is serving more than twenty years for spitting on a cop, despite the impossibility of transmitting HIV. And in the vast majority of cases against people having sex without disclosing, no transmission even occurred. In fact, whether or not there was any real risk of transmission is of little concern to prosecutors. People on medication with no viral load, for whom transmission is a remote possibility if at all, are being sentenced to jail time for not disclosing — even if they used a condom and did not transmit a thing. And the sentences are outrageous: decades of jail time in many cases.

Consider the black woman for whom disclosing her HIV status is more than a mere embarrassment; it could mean the collapse of her support network, the loss of a job or even physical danger. She is a compliant patient with no viral load, and insists her sex partner uses a condom. He somehow learns of her HIV status, calls the cops, and she is prosecuted and imprisoned. These are not fantasy scenarios, they are happening with increasing speed around the country.

The effect of these laws on public health is sobering. If those who know their status risk prosecution for not disclosing, and those who don’t get tested at all can have sex without legal consequences, how does that draw people into HIV testing? As activist Sean Strub says, “Take the test and risk arrest.”

The laws in some states are written so strictly that it is a legal risk for any HIV positive person to have sex at all. All the prosecutors need is to know you are HIV positive and you had sex with your accuser. If the accuser claims you didn’t disclose, you’re in for an uphill battle convincing a judge otherwise. You’re saddled with the distasteful nature of any positive person actually having sex, and if it was gay sex, well, God help you.

Activist Sean Strub has taken this issue up as a personal crusade. I first met Sean two years ago when I produced a video blog with him discussing the issue of HIV criminalization. He took it to the United Nations AIDS Committee last month, and brought along two heartbreaking stories in the testimony of Robert Suttle and Nick Rhoades.

Please take three minutes to watch the testimony of Robert, who was jailed for six months and will be labeled a sex offender for years — it is emblazoned on his driver’s license in red block letters.

And then watch Nick describe how he had protected sex with a partner, and an undetectable viral load, and by not disclosing his status he found himself in solitary confinement for months.

Sean’s own testimony about people with HIV being viewed as “vectors of disease,” with less rights but more responsibility to disclose, and you may view this issue quite differently than you do now.

Sean has also produced a trailer for a film he is producing, “HIV is Not a Crime,” and I urge you to watch it.

I have been invited by Sean to assist him in his work for the next several weeks, and will devote the month of January to helping him establish an online resource for the issue, culminate stories of those prosecuted, and bring the maddening personal stories of those prosecuted to a broader audience.

Is your record of disclosing your status perfect? Mine isn’t. I have been a compliant patient for many years and have an undetectable viral load. There has been instances in which disclosure felt unsafe, or I was in environments such as public sex clubs in which no one is asking or telling.

I don’t believe I deserve to go to jail for those indiscretions. Do you?

31 Comments

Such an interesting issue, and such an important one. I was unaware that people with HIV were regularly being imprisoned for failing to disclose status! That seems terribly unjust.

What I don’t understand is why a person who engages in safe sex needs to disclose anything to a partner. If a person uses a condom in an encounter, what business is it of their partner’s if they have HIV? As you say, many people have undetectable viral loads and are less likely to transmit than someone who doesn’t even know their status.

I do think, however, that it is criminally negligent for a person with HIV who is NOT on meds and therefore does NOT have an undetectable viral load to engage in UNSAFE sex without telling their partner. Yes, HIV is now in most cases a manageable illness. But that act hurts society by passing on a virus to an otherwise well person. This costs money in terms of health care. This hurts people, emotionally and physically. While it’s a person’s responsibility to protect themselves, it is also the responsibility of a person who knows he or she is infected with a transmittable virus to not transmit it wherever possible.

This may be un-PC, but that’s my belief.

Micheal S
December 29, 2011 at 12:43 pm

Just wanted to say that I agree with everything Bill K said. Everything. That’s all.

There are people who know their status and deliberately don’t tell their parters because they feel someone did the same thing to them. To me, this is like putting a gun to the head of the person you supposedly love. However, trying to punish these individuals who have no moral compass, the indiscriminate spread to torturing other innocent people who have done their best to be responsible practicing safe sex will be unfair, unjust and horribly misdirected. The only safe sex is no sex and that is ridiculous. Unwanted pregnancies prove that abstinence doesn’t work. This law should not be allowed. It will cause MORE harm than good. I do think, however, that honesty is important between all partners regardless of sexual persuasion. Adultery, children fathered by affairs, priests, husbands and wives in heteroseuxual marriages proves these “sainted individuals” are NOT practicing what they preach. My sympathies for all who are struggling to LIVE with HIV/AIDS under the ignorance and fear of most of our population.

Marc m.
December 29, 2011 at 1:33 pm

To Bill K…. I agree with most everything that you said BUT if two people are going to be “intimate”… it is the right of the uninfected individual to know that the other is infected with HIV, undetectable or not. There is ALWAYS a risk to the uninfected, condom or not… and not telling someone that you intend to have SEX with is irresponsible. period.

Looking forward to learning more about this important issue, Mark. In the meantime, have either you or Sean (or someone else) put together a list of citations to state/local/federal laws that are out there? I’d be interested at taking a look.

I am an HIV- gay man. I have taken full responsibility for MY OWN ACTIONS for the past 25 years. Meaning: It is MY responsibility to be informed. It is MY responsility to use condoms when I have sex. It is MY responsibility to discuss all sorts of issues related to HIV and other STDs with my sex partners. As I tell others – It takes 2 (or more, ha!) to tango… and EVERYONE is responsible for their OWN health and safety… the burden does not rest solely on the backs of people living with HIV.

The sad reality here in Louisiana (and I suspect in other states, as well) is that in the courtroom this matter becomes a “he said/she said” or a “he said/he said” type of situation… it’s not innocent until proven guilty. Rather – the person who is HIV+ must PROVE their innocence in the situation they are accused.

The law in Louisiana criminalizes “intentional exposure” to HIV is biased in the fact that it is specific to HIV only… not a single other communicable disease or virus is criminalized… not the deadly Hepatitis B or C… not Syphilis… not Tuberculosis… ONLY HIV… this is a class-action lawsuit (from HIV+ individuals) in the making… the law is unjust and must be struck down as being unconstitutional.

There will be a TOWN HALL meeting in Shreveport on Wednesday, January 18, 2012 in which Criminalization of HIV will be the main topic. The meeting will be at 740 Austen Place from 6-8pm. ALL are welcome to join us as we 1. Listen to the stories of those who have been unjustly labeled “criminal” or “sex offender”… and 2. what WE THE PEOPLE can do about it in Louisiana and at the federal level.

Don
December 29, 2011 at 2:32 pm

One important aspect of living with HIV for me is that I understand that I must shoulder the responsibility of disclosing my status and safeguarding both myself and my partner. If I cannot disclose then I don’t have sex, it is as simple as that. I also choose not to put myself at risk by not having anonymous sex, because lets face it, there are so many other STD’s out there that people do not disclose and which could seriously affect my already compromised immune system.
Certainly I do not agree with the the way some states (& countries) are criminalizing HIV+ people. However wouldn’t it be great if gay men actually took responsibility for their own actions and decisions rather than always playing the role of the victim?

Simone
December 29, 2011 at 3:35 pm

I found this interesting. However, the example of the black woman is a bit off base. As a black woman who is hiv+, disclosure is first and foremost. I’m not one who worries about what someone thinks. Losing my job for disclosing? It’s protected by federal laws in place. Physical danger doesn’t really happen, if you disclose up front. Of the black women I know, everyone discloses up front.

And this group of black women are in North Carolina…..so think about that for a second.

Steve
December 30, 2011 at 2:05 am

This is a great post. The laws need redefining for sure. Thank god for science, which proves that treatment is prevention. Unfortunately these laws and the entire human establishment has created a ‘viral underclass’ of people based on positive status. Stigma, which these laws substantiate, accelerates the spread of the epidemic. As the saying goes, “take a test, risk arrest”. It is crucial that we change these dangerous and unethical laws. Especially since now it’s theoretically possible for someone who has been cured of HIV to be prosecuted for not disclosing that they were PREVIOUSLY positive. Would a judge find Timothy Brown guilty of a crime for not disclosing to a partner that he used to have HIV?

Hi Mark,
Thanks for doing your so much to raise awareness about this. One question I have that I cannot seem to find an answer to:

I know a bill has been introduced in the House to revisit all of the states’ HIV criminalization laws. Any word on what or when anything could happen with that?

Thanks, buddy!

timotheus
December 30, 2011 at 2:37 pm

The whole criminalization tendency also flashes a big, strong & dangerous message to HIV-negative men and women: you have NO responsibility to protect yourself, only the HIV(+) people do. So you can continue to ignore the whole issue and then go to the cops if you find yourself with an unpleasant surprise.

I think this also illuminates how the disappearance of any community discussion about HIV and related issues leaves people relying on individual heuristics and unspoken assumptions. We need to get this topic (HIV and sexual health in general) back on the table in new ways, by which I do not mean the DEBIs and that old, tired paradigm. Not sure what the answer is, but this issue is certainly making it urgent.

If you do have unsafe sex with anyone it is your responsibility to tell them your status, whether pos or neg. This is not don’t ask, don’t tell.

Undetectable levels of HIV in your blood do not necessarily mean undetectable levels in other bodily fluids. So, if you are positive, always be safe.

Dave C
December 30, 2011 at 8:49 pm

I have to say I agree with Brett M and parts of Bill K’s comments.

Thanks for posting this Mark

Mark H
January 1, 2012 at 11:14 am

Janice,
The “gun” analogy is not useful. Neither are the “murder” analogies some folks use. The reality is that folks don’t grab a gun and guide between the appropriate ribs.

Marc m,
Thanks for illustrating the typical rebuttal. The problem with this binary, dogmatic thinking is that it’s based on a number of assumptions including:
1. That disclosure does not entail risk to the positive person
2. That all sex is of equal risk (there is NOT always risk; on the other hand everyday life is filled with many activities that carry greater risk than say for instance, getting a blow job from a positive person who’s highly adherent or undetectable or having receptive intercourse with the same person who is very adept at using condoms and pulls out before ejaculation.)
3. Disclosure will change behaviors or insure reduction of risk
4. That depending on disclosure is a viable risk reducation strategy (many believe that as many as half of infections come from folks who don’t know they’re positive)
5. That folks who think they are negative are (there status is really generally more accurately viewed as unknown.)

Simone: Federal laws don’t apply to every job. Access to legal protection works better for those with higher incomes and who are as empowered and self empowered as you; many folks are not.

Scotty O: Such cases are a tiny minority and they don’t require special laws to prosecute.

TO MARK: Thanks for sharing and summarizing the current discussion in a helpful way. Here is a short list of links I’ve been sharing (overlaps a bit with yours) that also includes campaigns that illustrate what culturally relevant, sensitive, effective prevention messages that include disclosure can look like. Notably, they are not domestic. Love ya.
=======
The â€œbad newsâ€ – three videos about criminalization and stigma:http://youtu.be/sucK-RcoRfI [from Planned Parenthood International]http://youtu.be/iB-6blJjbjc [Sean Strub has become the go to guy on criminalization in the U.S.]http://youtu.be/wtoYIIPcBXM

The sad fact is that these laws were written prior to HART and HIV/ AIDS was a death sentence.

Like all laws, they need to be reviewed and updated (women suffrage) or abolished (like prohibition and slavery).

Without people being made aware of these Draconian Laws and their laws ramifications the bigotry and prejudice about HIV/AIDS will continue.

Jim Kane
January 4, 2012 at 12:12 pm

In Canada the legal definition of significant risk will be clarified in the Supreme Court this year. We hope that the courts will follow the science and not the fear. In my opinion this is the result of trying to put a square peg in a round hole. A public health issue should ONLY be dealt with in the courts as a last resort. In Canada over 25% of those infected with HIV do not know their status. Stigma and discrimination does provide an environment that encourages testing. I remember in the early days of this illness, many people did not get tested in such an environment of stigma until it was too late. That was a very sad reality. Now we have lots of treatment options, and I believe we need sound public policy that creates an environment that encourages treatment which results in a significant decreased risk of transmission.

Jason
January 19, 2012 at 5:39 pm

While it’s easy to put all of the blame and/or responsibility on the person who is HIV positive we must remember that if it your own responsibility to protect yourself.

Just because someone got tested last week and it came back negative doesn’t they are negative. They very well could contracted the virus two weeks ago. So again someone saying they’re negative is meaningless whether they were tested one month ago, one year ago, or five years ago.

And if we do criminalize HIV positive people for having sex then people will just stop getting tested which will eventually spread the disease even more! That is totally unacceptable.

Having said though just as I believe it’s myself responsibility to protect myself I believe it is the responsiblity of an HIV positive to make sure their partner is protected as well which means using condoms during sex whether they are the bottom or top.

Very interesting, so when should they pass a law to cover all those people who have hiv and do not know it, because they did not get a test to determine if they have HIV, is that not as dangerous as someone who knows they have it?

You might say that will never happen but in the Law, it is always about what is reasonable not what is right or what is wrong, that is the real question, is it reasonable for someone to get tested to determine if they have HIV?

I think the answer has to be yes it is reasonable and promotes a healthy productive life in the future instead of spreading it around just because they fear the stigma of hiv.

So, what is worse, disclosing you have HIV, or not knowing you have it and spreading the disease to others.

I had my say on this subject on December 11th, and it still pisses me off too much to keep it coherent. I watched the trailer, and all I could think of is how much I wanted to wrap my talons around the necks of the people who were responsible for this abortion of law and reason… dammit!, I’m climbing up on that soap-box again. Somebody get me a drink… Stoli, straight-up.http://mommiedammit.com/2011/12/11/30-years-in/

Triton
February 6, 2012 at 12:34 am

This is a very complicated issue. Medical Privacy versus Having unprotected sex with knowledge of status without disclosure (not sure of the actual charge, but there is one in Florida). Personally, I have been positive since 1987 (25 yrs) and I would never have unprotected sex without full disclosure. Unfortunately, there are a lot of guys out there who choose not to disclose yet still have unprotected sex. As consenting adults, in this case, I would certainly expect both parties to use their own brains to make that decision and be equally responsible. A case here in Central Florida came to mind when I read this post where a church “counselor” had a 13 yr old dropped off at his home on weekends for “counseling” where he stayed over the weekend on numerous occasions where the counselor coaxed the kid into sex and didn’t disclose his status. Regardless of why the mother allowed her kid to stay overnight with an adult, eventually the kid told his mother what was going on. The police set up a phone call from the boy to the 55 year old counselor in which the counselor admitted to the kid on a recorded line that he did have HIV, but told the boy that he could not get the disease from him. He was arrested and is in Florida State Prison with a sentence of 15 years. In a case like this, I say he needs it cut off so he can never touch a child again. Additionally, the adult is a former female impersonator and since he is HIV +, gets to lay up in the medical ward and watch tv, get free meds (meds that cost my insurance $3,500/month) and 3 crappy meals a day. Hardly enough punishment for such a pervert who showed depraved indifference toward the life of a child. Fortunately, the kid is now 16, HIV- and doing well. In a case like this, I feel the legal system has an obligation to prosecute and disclose the guys status. As a felon, in prison, he gave up his civil rights and his status should be, as it was, published in every newspaper and television news in the area.

I fully understand it must be a difficult thing to tell someone you are positive with HIV but I feel a potential partner has the right to know. Although, if a person is in any doubt whatsoever about their partners sexual health, it is just as much their responsibility to ask as it is the partners to inform. There are ways of asking without it sounding like an interrogation or an intrusion into a persons personal details. If you don’t like the answers … walk! Although not infected myself, I have been round the block a few times and wouldn’t feel a few questions unjustified. Trust and honesty are a factor too. If one of the partners is asked if they are infected with HIV or any other STD, come to that, they should have the temerity and respect for their partner, to be honest in their reply. If they lie, however, that is just too selfish for words (at least give the other person the opportunity to make up their mind if they can handle the situation or not) and punishment is deserved but only if the outcome of the relationship has had an adverse effect on the other’s health. Where’s the point in exhausting an already stretched prison service just because someone feels they’ve been wronged if they’ve survived the relationship without contracting the HIV virus. Treat it as a lesson learned and MOVE ON. It’s a tragedy that anyone has this awful life threatening virus without them being treated as sub-human and social pariahs.

Elina Muteti
March 26, 2013 at 1:10 pm

I dated this man for about two years now. Just this January, I discovered that he has been taking HIV medications and never told me, I found them by mistake.

What can I do, I was tested, though positive, my doctor still put me to this very expesive medication which I can not even afford.

ceddyb
April 28, 2013 at 2:04 pm

How it seems as though all HIV + people are on here mad with us for not wanting that terrible disease.first off you need to acknowledge the role you played.you had unprotected sex, didn’t think enough to even ask you x partner that simple question, and most of you whores around to get it.our not fair for me to be put in a box, limited by what I can do sexually because I’m a 27 year old HIVnegative man.for those ox you that think there’s nothing wrong to crawl your sick assess in bed without informing the other is murder.just because I properly protect myself in sexual encounters and you didn’t doesn’t make you a charity case.it’s not what you done to get it it’s how you life your life after you get that knowledge.people deserve to know I think they should create a national HIV/AIDS registry cause it very apparent on this sure that you think it’s fine to sleep with unsuspecting people.that is murder and you decide to root I jail and then burn in hell

david see
August 16, 2013 at 10:58 am

I have been undetectable for two years…the doctor was happy to tell me, but it did not mean nothing to me. Big fucking deal, if I;m undetectable. It doesn’t change a fucking thing, I can’t have sex, I get discriminated against, I got the health department wanting to know who is in my bedroom. Fuck you and your undetectable status. All you did was tell me everything is going to stay the same, I’m just gonna live through it now. Laws need to change…HIV/Aids is no longer a death sentence. I wish it were though. If it weren’t for the fact that I would have to live an indefinite period of time as a scabby lesion, I would stop those med now.

Mark
October 9, 2013 at 7:20 pm

“I don’t believe I deserve to go to jail for those indiscretions. Do you?”

Yes! I do! You have an incurable highly contagious deadly disease, you know everything about the horrors surrounding it, and you decide FOR THEM they should take that risk!

Fuck you! We need the criminalization because people like you are hiding their status! You’ve made it a necessary evil!

You can pretend you’re the victim as much as you want, but the fact is, you have the disease, they don’t, and only one of you is lying about it!

Cory
December 2, 2013 at 5:59 pm

What about the person who had to wait 180 in complete panic whether to know for sure they did not have HIV? Psychologically that would destroy me. He served 9 months but I feel a minimum of six months would have been far.

If he did infect the other person than a longer sentence should be given.

Who has a deadly viral disease inside their body and not tell the other person?

poscrimesexist
April 12, 2014 at 8:25 pm

Anyone who infects someone because they are afraid to disclose or are in some sort of denial deserves the consequence of the law. If you’re not too afraid to have sex, than be a man or a woman and disclose. Why subject someone to a life of daily meds, other related health issues, blood draws every 3-6 months,etc.This isn’t a privilege or an honor, it’s a burden. There are too many real victims to minimize HIV criminalization. Being undetectable doesn’t mean a damn thing. It’s not worth the risk.

(Everyone is welcome to access their own, acceptable level of risk. But being undetectable, as the recent PARTNER Study showed, does mean something: 800 serodiscordant couples, two years of study, sex without condoms, no detectable viral load on the part of the poz partner, and not one single HIV transmission. That’s good information, which we all need in order to make our own decisions. — Mark)

I was dating a guy who I thought we were a couple and I lend him 3,400 from my disability thinking I was helping him with bills and he then told me it was for the horse racing and then told me I had to get a physical because I might have HIV.. I saved all this texts on my phone.. I went to the doctor and had a check up but was cleared.. This was last year and I want to have a check up again… When I confronted him about this he said he was joking.. I don’t find that a joke… Please help…. Can he go to jail for this? If yes were do I start.. My city is Alhambra, CA.. Thank u.

(Patricia, the HIV criminalization advocacy movement asks that we examine why the man you were dating should go to jail, when, if he had given you HepC or HPV, which are more deadly, he would not even be prosecuted. It is also important for us all to take responsibility for our own behaviors and exercise good judgment, whether it is having a conversation about HIV before sex — or getting tested together — or giving someone you don’t know very well $3,400 in cash. My advice is not to prolong being involved with him. You’re HIV negative. He did not infect you. Move on, and be smarter next time. — Mark)